E&B Partner now rated AV Preeminent

Eggleston & Briscoe, LLP is pleased to announce that partner and mediator John Michael Raborn has received the AV Preeminent® rating, which is the highest possible rating by Martindale-Hubbell.

AV® , AV Preeminent® , Martindale-Hubbell DistinguishedSM and Martindale-Hubbell NotableSM are Certification Marks used under license in accordance with the Martindale-Hubbell® certification procedures, standards and policies. Martindale-Hubbell® is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the bar and the judiciary. Martindale-Hubbell® Peer Review Ratings™ fall into two categories – legal ability and general ethical standards.

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E&B Associate becomes 100,000th active member of Texas Bar

E&B associate attorney Patrick McGinnis, who recently joined the firm, became the 100,000th active member of the State Bar of Texas when he passed the Bar Exam in July and registered with the Bar in November. Read more about Patrick on the State Bar’s Blog.

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E&B Partner Admitted to Oklahoma Bar

Eggleston & Briscoe, LLP partner David Smith is now licensed to practice law in the State of Oklahoma. David’s admission to practice law in his home state expands the firm’s geographical footprint and will allow the firm to represent clients throughout Oklahoma.

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E&B’s Client Prevails as Dallas Federal Court Enters Two Orders in Jurisdictional Fight

C.A. No. 3:14-CV-2689; Tudor Insurance Company and Lexington Insurance Company v. Ocotillo Real Estate Investment I, LLC d/b/a Longhorn Self-Storage; In the U.S. District Court for Northern District of Texas, Dallas Division

C.A. No.: 3:14-CV-03259-P; Ocotillo Real Estate Investment I, LLC d/b/a Longhorn Self-Storage v. Lexington Insurance Company, Tudor Insurance Company, All Risk, Ltd; Bigham-Kliewer Insurance Agency Inc. d/b/a Bigham Kliewer Chapman & Watts Insurance Agency; and Carrie K. Hensley; In the U.S. District Court for Northern District of Texas, Dallas Division

On January 9, 2015, a U.S. District Court Judge entered orders in companion lawsuits stemming from a first-party property insurance dispute. The property owner had submitted multiple notices of loss to multiple insurance carriers, claiming hail damage to its roofs. Following a settlement with one of the carriers, the owner threatened litigation against two additional carriers which had insured the property during subsequent policy periods. In response, the carriers filed a declaratory judgment action in federal court seeking declarations that they did not owe indemnification to the owner because there was no loss during their respective policy periods. One week later, the owner filed an action in state court, alleging breach of contract, common law bad faith, and various statutory violations against the carriers and several procuring agents. The insured/owner also moved to dismiss the first-filed declaratory judgment action as an improper anticipatory filing made for the purpose of improper forum shopping. The carriers subsequently removed the second-filed state court action based on fraudulent joinder of the procuring agents, and the insured/owner in turn moved to remand.

In finding that the procuring agents were improperly joined in the removed state court matter, the Court applied Texas pleading standards and held that the plaintiff/insured failed to plead specific facts which would support the theories of recovery stated in its petition because any claims against the procuring agents were barred by limitations. As a result, the Court denied the insured’s motion to remand the second-filed state court action. In a separate order, the Court, after a thorough review of the non-exclusive Trejo factors first enunciated in St. Paul Ins. Co. v. Trejo, 39 F.3d 585 (5th Cir. 1994), and based in part on the fact that a competing state court action no longer existed following denial of the motion to remand, also denied the insured’s/owner’s motion to dismiss the first-filed declaratory judgment action.

You can view the full text of both orders here and here . For additional information, please contact E&B attorneys Ray Gregory, Bill Eggleston, and Luke Fraser.

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E&B Successfully Defends Lower Court Victories in Texas Supreme Court

On September 19, 2014, the Texas Supreme Court ruled in favor of E&B’s client denying a petition for review regarding the adequacy of a certificate of merit filed in Case No. 14-0563; Siemens Energy, Inc. v. Nat’l Union Fire Ins. Co .  The ruling allows E&B’s client to proceed on its claim for damages in excess of $20 million stemming from a turbine failure in an electricity generating facility along the Texas Gulf Coast. E&B partner Bill Eggleston assisted in the representation.

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E&B Successfully Defends Trial-level Motion for Summary Judgment Victory on Appeal

Wallace Debes v. General Star Indemnity Company, Civil Action No. 09-12-00527-CV; in the Texas Ninth Circuit Court of Appeals.

On July 10, 2014, the Texas Ninth Court of Appeals affirmed the summary judgment granted by the 136th Judicial District Court of Jefferson County, Texas in favor of General Star Indemnity Company. E&B partner Monty Briscoe and associate Dave Loveless successfully argued the summary judgment at the trial level, which concerned third party beneficiary status of a building owner under a property insurance policy in Texas. The original plaintiff appealed and once again attorneys Briscoe and Loveless prevailed. After finding that privity only existed between General Star and the insured, the Ninth Court of Appeals held that the property owner was not a third party beneficiary and therefore had no standing to sue. A major victory for property insurers in the State of Texas.

You can view the full text of the Court’s order here. 

 

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E&B Obtains Dismissal of a Health Care Liability Claim Asserted Against a Workers’ Compensation Non-Subscriber in Arbitration

On October 22, 2013, an arbitrator dismissed with prejudice all claims asserted by a nurse against her employer, a long term acute care hospital.  In 2012, the Texas Supreme Court interpreted the definition of a Health Care Liability Claim (“HCLC”) in the context of an employer-employee relationship and determined that an employee’s claim against her employer could constitute a HCLC if it alleged a departure from accepted standards of care.  E&B partner David Smith successfully asserted a Motion to Dismiss, arguing that the nurse’s contention that her employer was negligent for failing to provide the proper equipment and the necessary personnel for her to safely transfer a patient was a HCLC.  Because claimant failed to provide an expert report within 120 days of filing her original petition, the Texas Medical Liability Act required dismissal.  In addition to dismissal, the arbitrator awarded the employer attorney’s fees.

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E&B Obtains Summary Judgment on Behalf of Workers’ Compensation Non-Subscriber

Donald Christenbury v. Humanetics, II, Ltd.; Cause No. D-1-GN-11-003561; In the 353rd Judicial District Court of Travis County, Texas.

Eggleston & Briscoe partner David Smith recently obtained a Summary Judgment in a non-subscriber case involving a pre-existing back injury.  Plaintiff suffered a back injury in 2002 requiring surgery.  In 2010, Plaintiff claimed he suffered a new injury that required additional surgery and rendered him permanently disabled.  Eggleston & Briscoe asserted a Motion for Summary Judgment contending that the Plaintiff had no expert medical testimony linking his alleged 2010 injury with his need for additional surgery or permanent disability.  The Court agreed and granted Summary Judgment.  The Court denied Plaintiff’s Motion for New Trial and Plaintiff did not appeal.

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E&B Obtains Declaratory Judgment in Houston Federal District Court

Preferred Contractors Insurance Company Risk Retention Group, LLC v. Oyoque Masonry, Inc. et al.; Civil Action No. 4:12-CV-1406; In the United States District Court for the Southern District of Texas, Houston Division.

On July 26, 2013, a magistrate for the U.S. District Court Judge for the Southern District of Texas granted Preferred Contractors Insurance Company Risk Retention Group, LLC’s (PCIC’s) motion for summary judgment, declaring that PCIC has no duty to defend or indemnify Oyoque Masonry, Inc. (OMI) in a suit against OMI involving a claim of bodily injury allegedly incurred by a third party in a construction-related accident. Basing its motion on an endorsement to the policy excluding coverage for bodily injury arising out of claims or suits brought by (inter alia) independent contractors (the “Action Over” endorsement), PCIC was able to successfully obtain a declaration from the court putting to rest the parties’ rights and obligations under the operative insurance policy.

You can view the full text of the Court’s order here.

 

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Galveston Federal District Court Judge Grants Motion to Remand

On July 1, 2013, a United States District Court Judge in Galveston granted Plaintiff’s Motion to Remand an insurance subrogation case, with Eggleston and Briscoe acting as local counsel, sending the case back to state court where originally filed. Focusing on the citizenship of the Plaintiff insurance syndicate’s managing agents, the Defendant sought to remove the case to federal court, asserting that complete diversity existed between the parties. The Court disagreed, finding that the individual underwriters subscribing to the syndicate, and not the managing agents, were the real parties in interest and it was their citizenship at the time liability attached which was relevant for diversity purposes. The pleadings and an affidavit showing one underwriter had common citizenship with the Defendant was sufficient to show a lack of the necessary diversity between the parties, resulting in remand.

 

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